Rehearing and Rehearing En Banc

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Can you ask the court of appeals to reconsider?

You can ask the court of appeals to reconsider — by petition for panel rehearing, rehearing en banc, or both. Both are now governed by Fed. R. App. P. 40; the 2024 amendment transferred former Rule 35 into it. In a criminal case the petition is due within 14 days after judgment is entered. The rule itself says rehearing en banc “is not favored.”

Key takeaways on rehearing and en banc review

• Rule 35 was transferred into Rule 40 by the 2024 amendment. Any source citing Rule 35(a) for the en banc standard is stale.
• One rule now governs both forms: Fed. R. App. P. 40, “Panel Rehearing; En Banc Determination.”
• The criminal deadline is 14 days after entry of judgment — Rule 40(d)(1).
• The 45-day period is civil-only. The 1994 Committee Note: “It has no effect upon the time for filing in criminal cases.”
• If you seek both forms, they must be filed as a single document unless a local rule provides otherwise — Rule 40(a).
• The petition is capped at 3,900 words if computer-produced — Rule 40(d)(3).
• No response is permitted unless the court requests one, and “[o]rdinarily, the petition will not be granted without such a request” — Rule 40(d)(4).
• Filing a timely petition delays the mandate — Fed. R. App. P. 41(b).

Rule 35 is gone: what changed in 2024, and the current deadline

This is the citable core of the page. Everything in the right column is quoted from the current rule or its committee notes.

	Before the 2024 amendment	Now
Panel rehearing	Fed. R. App. P. 40	Fed. R. App. P. 40
Rehearing en banc	Fed. R. App. P. 35	Fed. R. App. P. 40
What Rule 35 says today	The en banc rule	“Rule 35. (Transferred to Rule 40)” — the entire text of the page
Why it changed	—	“the amendment addresses panel rehearing and rehearing en banc together in a single rule, consolidating what had been separate, overlapping, and duplicative provisions of Rule 35 … and Rule 40” (2024 Committee Note)
Criminal deadline	14 days	14 days — “any petition for panel rehearing or rehearing en banc must be filed within 14 days after judgment is entered” (Rule 40(d)(1))
After an amended decision	—	14 days from entry of the amended decision — new language added in 2024
The 45-day period	Civil cases with a federal party	Still civil-only. 1994 Committee Note: “It has no effect upon the time for filing in criminal cases”
Filing both forms	Separate rules	“a party seeking both forms of rehearing must file the petitions as a single document,” unless a local rule provides otherwise (Rule 40(a))
Word limit	Rule 35(b)(2) / Rule 40(b)	3,900 words if computer-produced; 15 pages if handwritten or typewritten (Rule 40(d)(3))
Response	—	“Unless the court so requests, no response to the petition is permitted” (Rule 40(d)(4))
Oral argument on the petition	—	“Oral argument on whether to grant the petition is not permitted” (Rule 40(d)(5))
Panel’s authority while an en banc petition is pending	Not addressed	New in 2024 — Rule 40(f): filing an en banc petition “does not limit the panel’s authority” to act under Rule 40(e)
Effect on the mandate	—	Mandate issues 7 days after the time to file expires, or 7 days after denial of a timely petition, whichever is later (Rule 41(b))

Why the 45-day trap matters. The text of Rule 40(d)(1) reads that the 45-day period applies “in a civil case … if one of the parties is … the United States.” A criminal prosecution is brought by the United States, so a reader skimming for “the United States” can easily conclude the longer period applies. It does not — the qualifier is “in a civil case,” and the 1994 Committee Note removes any doubt: “It has no effect upon the time for filing in criminal cases.” A criminal defendant who relies on 45 days files 31 days late, and the petition is untimely.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The renumbering is not a formality. A petition that cites Rule 35 tells the panel that counsel is working from materials that predate December 2024, before it says anything about the merits. Given that a rehearing petition is an argument that the court got something wrong, that is the last impression to make in the opening paragraph.

Panel rehearing and rehearing en banc are different requests

Rule 40 now houses both, but they ask for different things and are decided by different people.

	Panel rehearing	Rehearing en banc
Who decides	The same three judges	A majority of the circuit judges in regular active service who are not disqualified (Rule 40(c))
What you argue	The panel “overlooked or misapprehended” a point of law or fact (Rule 40(b)(1))	The decision conflicts with binding authority, or the case presents a question of exceptional importance (Rule 40(b)(2))
The rule’s own posture	“Panel rehearing is the ordinary means of reconsidering a panel decision” (Rule 40(a))	“rehearing en banc is not favored” (Rule 40(a) and again in Rule 40(c))
Realistic use	Correcting a specific, identifiable oversight	Circuit-wide legal significance, or a conflict the full court must resolve
Vote mechanics	The panel decides	“Unless a judge calls for a vote, a vote need not be taken to determine whether the case will be so reheard” (Rule 40(c))

That last row explains a great deal. Under Rule 40(c), an en banc petition can be denied without any judge ever calling for a vote. Most are.

What a panel rehearing petition must contain

Rule 40(b)(1) requires a petition for panel rehearing to:

“(A) state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended; and (B) argue in support of the petition.”

The operative words are overlooked or misapprehended. A panel rehearing petition is not a second merits brief and not an opportunity to re-argue what the panel already considered and rejected. It is a claim that something specific escaped the court’s attention — an argument the opinion does not engage, a record fact the opinion states incorrectly, a controlling authority not addressed.

Petitions that simply disagree at greater length are the norm and they fail.

What an en banc petition must contain

Rule 40(b)(2) is stricter still. The petition “must begin with a statement” that one of four things is true:

Ground	The rule’s language
(A) Intra-circuit conflict	“the panel decision conflicts with a decision of the court to which the petition is addressed (with citation to the conflicting case or cases) and the full court’s consideration is therefore necessary to secure or maintain uniformity of the court’s decisions”
(B) Conflict with the Supreme Court	“the panel decision conflicts with a decision of the United States Supreme Court (with citation to the conflicting case or cases)”
(C) Conflict with another circuit	“the panel decision conflicts with an authoritative decision of another United States court of appeals (with citation to the conflicting case or cases)”
(D) Exceptional importance	“the proceeding involves one or more questions of exceptional importance, each concisely stated”

Rule 40(c) then closes the loop: rehearing en banc “ordinarily will be allowed only if one of the criteria in Rule 40(b)(2)(A)–(D) is met.”

Note what each of the first three grounds requires: citation to the conflicting case or cases. An assertion that the decision conflicts with precedent, without naming the case it conflicts with, does not satisfy the rule. Ground (D) has its own discipline — each question must be “concisely stated,” which in practice means one sentence per question at the top of the petition.

How rarely rehearing is granted

Both forms are unlikely to succeed, and the honest thing is to say so rather than encourage a futile filing.

The rule tells you this itself, twice. Rule 40(a): “rehearing en banc is not favored.” Rule 40(c): “Rehearing en banc is not favored and ordinarily will be allowed only if one of the criteria in Rule 40(b)(2)(A)–(D) is met.” And Rule 40(d)(4) provides that “[o]rdinarily, the petition will not be granted without” a requested response — so if the court has not asked the government to respond, the petition is very probably going to be denied.

Structural reasons compound this. En banc rehearing requires a majority of the active, non-disqualified judges of the entire circuit to agree to reconsider a decision three of their colleagues have already made. In a large circuit that is a substantial number of judges. And under Rule 40(c), a vote need not even be taken unless a judge calls for one.

No percentage appears on this page, because the Administrative Office does not publish rehearing grant rates in the Judicial Business tables and an invented figure would be worse than none. What can be said with authority is that the rule declares the remedy disfavored and that the court’s request for a response is the meaningful signal.

Why file one anyway: preservation and the road to certiorari

Given the odds, there are two sound reasons to file — and one poor one.

Sound reason 1: the panel genuinely overlooked something. If the opinion does not engage an argument that was squarely briefed, misstates a material record fact, or fails to address controlling authority, that is precisely what Rule 40(b)(1) is for, and it is the situation in which panel rehearing occasionally works. Panels do amend decisions — Rule 40(d)(1) and Rule 40(f) both contemplate it.

Sound reason 2: it builds the certiorari petition. The grounds for en banc rehearing under Rule 40(b)(2) map closely onto the considerations for certiorari under Supreme Court Rule 10, which identifies as a compelling reason that “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.” An en banc petition that documents a circuit conflict, and a denial that leaves the conflict standing, is the natural predicate for a cert petition. See certiorari petition and federal appeals court on how circuit splits arise.

The poor reason: delay. A rehearing petition postpones the mandate, and using it for that purpose is transparent, ineffective, and costs the 90-day certiorari clock nothing — because under Supreme Court Rule 13.3 the certiorari clock “runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate.”

Effect on the mandate

Timing is where the practical consequence lands.

Under Fed. R. App. P. 41(b): “The court’s mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later.”

So:

• No petition filed — the mandate issues about 21 days after the decision in a criminal case (14 days for the petition window plus 7).
• Petition filed and denied — the mandate issues 7 days after the denial order.
• Petition granted — under Rule 40(e), the court may “dispose of the case without further briefing or argument,” “order additional briefing or argument,” or “issue any other appropriate order.”

Until the mandate issues, the district court does not have the case back — which matters if the decision was favorable and a remand is waiting. See what happens after an appeal is granted.

What the court can do if a petition is granted

Rule 40(e) sets out three options, and the first one surprises people: the court may “dispose of the case without further briefing or argument.” A granted rehearing does not necessarily mean a new round of briefing; the panel may simply issue a revised decision.

Rule 40(f), new in the 2024 amendment, addresses a situation the old rules left unclear: “The filing of a petition for rehearing en banc does not limit the panel’s authority to take action described in Rule 40(e).” The Committee Note explains the purpose — sometimes “a panel may conclude that it can fix the problem identified in a petition for rehearing en banc by, for example, amending its decision,” and the amendment “makes clear that the panel is free to do so.”

If the panel amends its decision, Rule 40(d)(1) supplies a fresh 14-day window running from entry of the amended decision.

Initial hearing en banc

Rule 40(g) covers the rare request to bypass the panel entirely: “On its own or in response to a party’s petition, a court may hear an appeal or other proceeding initially en banc.”

The timing is early — “[a] party’s petition must be filed no later than the date when its principal brief is due” — and the rule’s posture is discouraging: “initial hearing en banc is not favored and ordinarily will not be ordered.” It arises where a panel would be bound by circuit precedent the party contends is wrong, so that only the full court can grant relief.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The 14 days after an adverse decision is the tightest window in the whole appellate process, and it usually arrives while a client in custody is still absorbing the news. If rehearing is under consideration, the decision has to be made in the first days, not the second week — and the parallel question, whether the § 2255 clock is about to start running, should be answered in the same conversation.

Rehearing, certiorari, or § 2255: choosing the next step

After an adverse decision there are three roads, and they are not mutually exclusive.

	Rehearing (Rule 40)	Certiorari	§ 2255 motion
Deadline	14 days after judgment (criminal)	90 days after entry of judgment	Generally 1 year from finality
Decided by	The panel, or the full circuit	The Supreme Court	The district court
Best when	The panel overlooked or misapprehended something specific	There is a circuit conflict or a question of national importance	The claim needs facts outside the record
Realistic odds	Low; the rule calls en banc “not favored”	Very low	Better, but claim-dependent
Effect on the mandate	Delays it	Only via a Rule 41(d) stay	None
Effect on the § 2255 clock	Rehearing affects when the judgment becomes final	A filed petition postpones finality until disposition	This is the clock

The bottom row is the one that costs people their remedy. Whether and when you seek rehearing and certiorari changes the date the judgment becomes final, and the § 2255 one-year period runs from that date. Deciding not to file a cert petition is a legitimate strategic choice — but it should be made knowing that it starts a clock. See direct appeal vs 2255 and post-conviction deadlines.

For what was reviewable in the first place — and therefore what a rehearing petition can even argue was overlooked — see preserving error for appeal.

Practical mechanics of filing

A few requirements are easy to get wrong under a 14-day deadline.

One document, both petitions. Rule 40(a): “Unless a local rule provides otherwise, a party seeking both forms of rehearing must file the petitions as a single document.” Filing two separate petitions where the local rule does not permit it invites a deficiency notice you do not have time to absorb.

Form follows Rule 32. Rule 40(d)(2): “The petition must comply in form with Rule 32. Copies must be filed and served as Rule 31 prescribes, except that the number of filed copies may be prescribed by local rule or altered by order in a particular case.” Check the circuit’s local rule on copies.

The word limit is firm and small. 3,900 words is roughly a third of a principal brief. An en banc petition that must begin with the Rule 40(b)(2) statement, cite the conflicting cases, and argue the point has very little room, which is why the discipline of naming one ground rather than four generally produces a better petition.

Do not expect to argue it. Rule 40(d)(5): “Oral argument on whether to grant the petition is not permitted.”

Do not expect a response. Rule 40(d)(4): “Unless the court so requests, no response to the petition is permitted.” Government silence is not concession; it is the default.

Watch for an amended decision. If the panel amends its decision while a petition is pending, Rule 40(d)(1) gives a fresh 14 days from entry of the amended decision — and Rule 40(f) confirms the panel may amend even while an en banc petition is pending. That new window is easy to miss.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal appellate and post-conviction firm founded in 2019, with a national practice run on an intentionally small caseload. Elizabeth Franklin-Best is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is recognized by Best Lawyers in America 2026 for Appellate Practice.

A rehearing petition is a 3,900-word document written in 14 days arguing that three federal judges made a mistake. It is worth filing when there is a genuine oversight or a documented conflict, and worth declining when there is not — and that assessment is what a consultation after an adverse decision is for.

Talk to a federal appeals attorney

If a panel decision has just issued, the 14-day rehearing window is running now.

Schedule a consultation · Phone: (843) 620-1100 · Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204

Elizabeth Franklin-Best, P.C. represents clients in federal courts nationwide as a federal appeals lawyer. Consultations are confidential.

Related guides on rehearing and further review

• Federal appeals lawyer — the hub: how a federal criminal appeal works end to end
• Federal appeals court — panels, the full court, and how circuit law binds
• How long does an appeal take — where the 14-day window falls in the timeline
• Standard of review appeal — what the panel was applying, and what it may have misapprehended
• Grounds for appeal — the issues that were before the panel
• Appeal bond — custody while a petition is pending
• Criminal appeals lawyer — who writes a 3,900-word petition in 14 days
• How to appeal a federal conviction — the process that led here

Frequently Asked Questions About Rehearing and En Banc Review

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026